Text 15191, 73 rader
Skriven 2007-01-07 11:21:06 av mike (1:379/45)
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From: mike <mike@barkto.com>

From the January 2007 issue of IP Law & Business magazine, page 23

(excuse the typos, I couldn't find an electronic copy...)



Run an unactivated or unregistered copy of Microsoft Corporation's new
operating system, Vista, and your troubles will quickly mount.  The software
will post a huge banner on your computer explaining that you are a scofflaw and
a felon.  More significantly, Microsoft will disable major features of the
operating system.  According to the terms of the license agreement, your
computer may not run at all.

Put simple, if the software giant believes that a user has violated the license
agreement, not only can Microsoft sue for breach of contract and copyright
infringement, it can electronically "repossess" the software. Under the terms
of the license agreement, a Vista user is not entitled to any damages resulting
from a wrongful shutdown - beyond the amount paid for the software.

The Vista agreement is just the latest example of the kind of self-enforcing
contract terms that are everywhere in the digital world...

Before DRM, if a user violated the terms of a license to use some copyrighted
work - music, video, books, games - he became subject to civil and criminal
copyright enforcement actions, or breach of contract actions.  DRM goes
further, because the IP actually protects itself. Vista just shuts off if it
thinks you violated a contract term.... Imagine the real-world equivalent: You
lease a car, miss a monthly payment, and suddenly your car stops working. 
You're informed, in fine print in the owner's manual, that the car will only
restart when you pay (or repay) the overdue bill.

As a general matter, the law disfavors this kind of self-help.  Sure, if you
don't pay for that furniture or make your car payments, the finance company, as
holder of a security interest in the property, can send out the repo man.  But
generally, the party alleging a contract breach has to prove to a court or
arbitrator the existence of a material breach, with competent evidence, in
order to be entitled to damages or equitable relief.  Not necessarily so with
software, because the license terms themselves inform the user about the DRM
scheme....

But can digital information licensees reserve the right to disable their
products?  In the late 1980's and early 1990's, there was a series of cases
where software developers either remotely shut down software, or put disabling
code in the software in the event that they determined that the licensee
breached the terms of the agreement.  These license agreements were negotiated
between sophisticated parties - not the kind of mass-market agreements we have
today....

In these and other cases, however, one key factor was that the software license
agreements - negotiated by sophisticated parties with roughly equal bargaining
power - did not adequately the existence of the drop-dead code.  The courts
were equally disturbed by the fact that the software developers were holding
their customers hostage until the developers received what they thought they
were due.

Partially as a result of these cases, Maryland and Virginia passed laws
regulating electronic information and self-help.  The Maryland law, while
allowing some use of electronic means to enforce a copyright holder's contract
rights, specifically prohibits such self-help in mass-market transactions.  The
Washington state court system's web site indicates that software vendors
selling to the state must warrant that their code is free of any "back door,
time bomb, drop dead device, or other software routine designed to disable a
computer program automatically."

The Vista license agreement and other DRM may adequately disclose terms. But
they still look an awful lot like electronic repossession.  Worse, they
effectively short-circuit the need for such annoying things as burden of proof,
evidence, courts, trials, and litigation.

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